INTHE SuP.reme Court of AT RICHMOND

RECORD NO. 931561

DIANE GORICZYNSKI, et al., Heirs at of Charles Roach Mccowen,

Appellants, v.

ANITA 0. POSTON, Administrator d.b.n.c.t.a. of the &tate of Charles Roach Mccowen, deceased, et al.,

Appellees.

APPENDIX

Jeffrey T. Talbert Anita 0. Poston SHUTfLEWORTH, RULOFF, VANDEVENTER, BLACK, GIORDANO & KAHLE, P.C. MEREDITH & MARTIN 4425 Corporation Lane 500 World Trade Center Suite 300 Norfolk, VA 23510 Vu-ginia Beach, VA 23462 (804) 446-8600 (804) 671-'646

Counsel for Ap~Oants­ Administrator d.b.n.c.t.a. Heirs at Law of of the Estate of Charles Charles Roa£h McCowen R.. McCowen

CotltbilU11ic:: of C.ounsel and Parties on Inside Co•er

LAWYERS PRINTING COMPANY 7th & Franklin Bldg. Richmond,Virginia 23219 (804) 648-3664

TABLE OF CONTENTS

Appendix Page

Bill for Aid and Direction in Ascertaining Distributees, with Exhibit A, filed September 6, 1990 ...... 1

Last Will and Testament of Charles Roach Mccowen ...... 6

Stipulation of Facts, with attached Instruction Sheet, entered March 23, 1993 ...... 9

Cover Letter from the Honorable Leonard B. Sachs, dated June 1, 1993, with attached Memorandum Opinion ...... 14

Final Decree, entered July 26, 1993 ...... 26

Assignments of Error ...... 29 ----

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY Of NORFOLK

JOHN W. NEWTON , E~ecutor of CHARLES ROACH McCOWEN , deceased Chancery No. C90- 1356 v Bill for Aid and Direction IN ASCERTAINING DISTRIBUTEES

JAMES W. STRANGE SERVE AT:3035 Bray Road Virginia Beach, Virginia 23452

GEORGE HOLLY Serve at: 9010 Granby Street Norfolk, Virginia 23503

NORA WOOTTEN Serve at: 1237 Swallow Drive Vi rginia Beach, VA 23456

ROBERT R. SADLER Serve at: Sadler Aviation Farmville Municipal Airport Farmville, VA 23901

SIDNEY M. BIBERMAN Serve at : 510 Thole Street Norfolk, VA 23505

SAM TAYLOR Serve at : 781 Shady Oaks Court Ponte Verdra, FL 32082

J I M NIENHAUS Serve at: 1057 Chattoonga Street Chesapeake, VA 23320

STEVE -WEBB Se r ve at: 101 Summerset Yorktown, VA 23692

PHYLLIS WEBB Serve at: 101 Summerset Yorktown, VA 23692

HENR Y DRIVER Ser ve at: 1324 Maplewood Avenue Norfolk, VA 23503

VIRGINIA DRIVER Serve at: 1324 Maplewood Avenue Norfolk, VA 23503

1 GARY (RED) CHANDLER Serv e at: RR #2, Box 229A Tecumseh, Missouri 65760 THE HEART FUND Serve a t: 360 Southport Circle #103 Virginia Beach, VA 23452

AMERICA N CANCER SOCIETY Serve at: 808 Live Oak Drive Chesapeake, VA 23320

SAL VATION ARMY Serve at: 203 W. 19th Street Norfolk, VA 23517

JULIE C. McCLUSKEY Serve at: 606 Linda Drive Clinton, MI 39056

JOHN B. JOPLIN Serve at: 2466 Red Bird Trail German Town, TN 38138

JOYCE A. JOPLIN Serve at: 745 E. Prescott Circle Memphis, TN 38111

TRUDY JAYNE CARRINGTON Serve at: 1617 Haynes Lane Redondo Beach, CA 90278

LOUISE ANN JOPLIN Serve at: 2329 Thread Needle Court #4 Albany, GA 31707

JOANNA JOPLIN-BRUNO Serve at: 213 S. Rowlett Collierville, TN 38017

DIANE GORICZYNSKI Serve at: 6116 Granby Street Norfolk, VA 23505 and others unknown

Now comes the petitioner JOHN w. NEWTON and states as follows:

1. On September 4, 1989, CHARLES ROACH McCOWEN died, leaving a will duly attested which on the 6th day of September, 1989, was admitted to probate in the office of the Clerk of the Circuit

Court of the City of Norfolk, as shown by a copy of said will and

2 probate order attached hereto a nd made a part hereof as "Exhibit A".

2. Petitioner states further that he had paid all lawful claims against said estate and has duly rendered an inventory and accounting of said estate to the Circuit Court of the City of Norfolk.

3. Petitioner states that the following persons have claimed some interest in o r t itle to some of the real property contained in the estate or an interest in the residual estate of CHARLES ROACH

HcCOWE N apparently by reason of intestate secession:

JULIE C. McCLUSKEY

JOHN B. JOPLIN

JOYCE A. JOPLIN

TRUDY JAYNE CARRINGTON

LOUISE ANN JOPLIN

JOANNA JOPLIN-BRUNO

DIANE GORICZYNSKI

4. Petitioner further says that various questions have arisen and various claims h ave been made by different persons hereinbefore named relative to the construction, validity and legal effect of certain provisions and possible attempts to partially revoke or change various Articles and specific bequests contained in the will

(Exhibit A), among which are the following:

\vhether a ny legal effect can be given to the apparent attempts at changing or e liminating the provisions of the will or are such attempts void as not being properly attested to, confusing, vague, uncerta in or undertaken when the testor was not of sound mind.

Whether the claimants under intestate secession above, have any interest in the est ate of their second cousin, CHARLES ROACH McCOWEN.

In the event that any attempted alteration or 3 adjudged to be inoperative or invalid, or to have failed, then to

whom, and in what amount should the estate be distributed.

5. The plaintiff is ready and willing to convey said estate as

the same shall appear of right to belong, but he is in doubt as to

the legal effect of said alterutions to the said will; and by reason

of the conflicting claims of the various parties in interest and the

uncertainty and ambiguity of the various attempted alterations of

said will, he is exposed to sundry suits by said claimants, and to

loss and damage therefrom.

WHEREFORE The petitioner therefore prays that he may have the advise and

protection of the Court in the interpretation to be given to any

attempted alterations or revocations to said will; that he may have

a decree entered in this cause adjudicating and settling the

interpretation of said attempted alterations or revocations of said

will and directing the petitioner in what manner he shall make

distribution and to whom, so that he may execute the same properly

and with safety to himself; and that he may have such other and

further relief as the court may see fit to grant.

Exe~r of the Estate of CHARLES ROACH McCOWEN, deceased By Counsel

James F. Booker Attorney at Law 215 Monticello Arcade Norfolk, VA 23510-1727 (804) 622-7750

4 EXHIBI T A

\' me; l N ll\ : In Ll1c C l e rk' s Office o f th<~ Circ uit Court of the City or Norfolk 0 11 Lhr. Glh. cla. y of September, 1989.

llE: Charl cs lloach ~lcCowcn-Deceased-Executor

The las t will and t e stament of Charles non.ch Mccowen, de­ cea sed, l ute o f the City of Norfolk, who departed this life on t h e ·Ith. da y o f Septe mber, in tlw year 1989, together with sworn s lalcment purs uant to Section G1.1-87.1 of the , lD:> O, a s ame nded, were this clay produced in the Clerk's Office a 1: ti o f f e r e cJ ( o r p rob a t c . IV lw re upon i t i s con s id c red by the

C l < ~ r l ~ lhal t li c s aid will i s .:July and fully proven, and the same i:j o rde red admitted to probate and recorded as the true last will and testament of the s aid Charles 11oach Mccowen, deceased, i 11 d u c r u nn . Thereupon o n the motion of John W. Newton, the Executor n :tmcd in Lhe s aid wi 11., tho Clerk doth appoint John W. Newton a s Lhe Executor of Lite las t will and testament of Charles Roach

~l cCo w e n, d e c e a s ed . There upon John W. Newton qualified as such

E:

I·>; La Lu o [ LIl e s a.i cJ Chai· I 1..' S lloach Mc.Cowen, deceased, in due

1' 0 1·111. J\nd it i s orde r e d LhaL the s aid bo nd be r e corde d .

CLERK

5 ~--_

Ii Wil 1 I soon as

I h e t __ -~·----_...... ,. -. .. --- 7 -- •• - - -.------..._.,,,.---... - - ,., ,... v---.. .. , JOHN W. NEWTON as the personal representative of this, my Last Will and of my Estate, and t o serve such appointment without being required to .Post surety on the bonds. In the - event of the deat h, disability, incapac i t y or refusal of JOHN W. NEWTON to serve such appo intment , I hereby nominate, constitute and appoint JAMES W. STRANGE to se r ve such appointment , and JAMES W. STRANGE sh al l al so be permitted to serve as such without being required t o post surety on the jl bonds . I he r eby waive appraisement of my estate. ARTICLE I II ~~ h as foll ws : ~ A. To JOHN W. E

Virginia, and t he sum of Ten Thousand ($10,000.00) Dollars.

Page 1 . Last Will ~tX~ ~~e .. CHAR[E S ROACH McCOWEN

l d~ c..!. 11 6 / tJ / 7-?/ LAST WILL ANO TESTAMENT OF CHARLES ROACH McCOWEN

I, CHARLES ROACH McCOW EN , of the City of Norfolk, in the State of Virginia, being of sound and disposing mind and memory , do hereby make , publ ish and declare this to be my Last Will, hereby revoking all Wills and Codicils by me at any time heretofore made . ARTICL E I I di rect t hat all my just debts , f uneral expenses and any and all inheritance or estate t axes which may be assessed against my estate or any beneficiary under this Will be paid by my representative , hereinafter named, as soon as practicable after my death. ARTICLE II I hereby nominate, con stitute and appoint JOHN W. NEWTON as the personal representative of this, my Last Will and of my Estate, and to serve such appointment

wi t ho ut be i n g re q u i red t.o .Po st s u re t y on t he bond s • I n t he event of the death , disability, incapacity or refusal of

1 JOHN W. NEWTON to serve such appointment , I hereby nominate , constitute and appoint JAMES W. STRANGE to serve such appointment , and JAMES W. STRANGE shall also be permitted to serve as such wi t hout being required to post surety on the

bonds . I hereby waive appraisement of my estate. ARTICLE III ~ give,_.,d~v~-.s.,.e and beque th as follows : ~ '..._.- ~ ~ A. To JOHN W. NEWTON my business, ,.,,--...._ to~ h e,r--iii't'h.._. the i m f ovements lp.Cated G anby Street

Virginia , and the s um of Ten Thous and ($10,000 . 00) Dollars .

1; ! Page 1. last Wi 11 ~;X~~6 I CHARlES ROACH Mc COWEN d'&- c..!~ 6

E. To ROBE RT R. SADL ER the sum of Ten Tho usand ($10, 000.00) Dol l ars . F. To SID NEY M. BI BE RMAN the sum of Te n Th ous and ($10 , 000 . 00) Doll ars .

H. To J IM NIE NHAU S t he s um of Ten Tho us and ($10,000.00)

. --- .--- o usan~OlJU-:OUT Do l lars . To HENRY DRIVER and VIRGINIA DRIV ER t he sum of T,weft-~ ( ~ ) Do l l ars . / 6 / 6- 0D -

K. To GARY (RED) CHAN DLER t he s um of ~ d ~lla r s . ~I o1 <> o C"? L. All of t he rest , r es i du e and remainder of my of every ki nd and description , real, per son al an d mixed, whe t her now own ed or hereafter acqu i red , or to which I m4y be e ntitl ed at the time of my de at h , where soever the same may be situated or f ound , t hr ough i nheritance or

otherwi se , to the ~-'J.A.H-01rP:'Rtff, HEAR T FU ND, and AMER I CAN CANCER SOCIETY , equ al l y, pe r capi t a, in fee si mple absolute . ARTICLE IV

I gr ant to my r epresentative , he r ei nbefore named , the po wers pe rmi t t ed an d gran t ed under Sect ion 64. 1-57 of the Code of Virgi nia, as amended, and I i nc or po rate t hat

Code Section in this Wi l l by t his r eference . IN WI TN ESS WHEREOF , I have hereunto set my hand and seal to this my Last Wi ll and Testament , on t hi s t he

day of J-7 6CT!r/Sc-n... A-0 I ~ 3'3 ~l<~-14_~ CHAR LE S ROAC H McC OWE N [

7

STATE OF VIRGIN IA, CITY OF VIRGIN IA BEAC H, t o-wi t:

Before me, the undersigned authori t y, on this day personally a pp ea red CHARL if ROACH Mc COWEN C l.. tA.1.-feJ 5c../z J, e r-j '- e.ob So..h~. er9 and known to me t o be the Testator and the witnesses, respectively , whose names are si gned to the foregoing instrument and, all of these persons being by me first dul y swor n , CHARLES ROACH McCOWEN , t he Te stator, decl ared to me and to the witnesses in my presence that said instrument i s his Last Will and Testament and that he had willingly signed and ex ecuted it in the presence of said witnesses as his free and vol untary act for the purposes therein expressed ; that said witnesses s tated before me that the foregoing Will was executed and ac knowledged by the Testator as his Last Will and Testament in the presence of said witnesses, who, in his presence and at his request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the day of the date of sa id Will, and that the Testator , at the t ime of the execut ion of said Will, was ove r the age of eighteen (18) years and of sound and disposing mind and memory .

~l?-1~€-~ Testa tor ~~ ;~~-~6 ~ sWftt~7/

Witness

Notary Publi c

My Commi ssion expires: } - )._ u ~ i./

Page 3. Last Will and Testamen t 8

' I ii ,, ii VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK

11 JOHN W. NEWTON, Executor of I the Estate of CHARLES ROACH MCCOWEN, deceased,

'I Petitioner,

' v. CHANCERY NO.: C90-1356 i JAMES W. STRANGE, et al.,

I' Defendant. ii STIPULATION

I Except as otherwise noted, the parties to this cause, by 1 I, counsel, stipulate and agree upon the following statements of I ii I facts: 1 I 1. The Will of Charles Roach Mccowen ("Mccowen") was

executed on October 27, 1983 in the offices of Howard M. Miller, I the attorney who prepared it. (the Will).

I No handwritten marks were on the Will at the time of its i 2. execution, with the exception of the signatures of Mccowen as

I testator, the signatures, initials and names of the witnesses, the I signature of the notary and the date of the Will. d jl 3. The instruction sheet identified as Exhibit A was '

l.Aw 0PPICE 8 v ""D£V£,,T£ a . B LACK, provided to Mccowen by the attorney, Howard M. Miller, at the time

~l l!Rl!D l TH & ~lABT l l<

~0 0 W ORLD TRADE G E!fTE ll the Will was executed.

~oarou. \·1ao 1:oru 2a ~10 I 4. The instruction sheet was signed and dated by Mccowen. (8 0 4) ·H6·8800 5. Mccowen had continuous physical possession of the Will

from its execution until his death.

9 I I ·1

11 6. The signatures of the testator on the Will are in the

I\ handwriting of Mccowen. I! 7. All of the handwriting and marks on the Will (with the exception of the signaturesm initials and names of the witnesses

and the signatures of the notary) were made by Mccowen .

8. The Will was delivered to Mccowen by his attorney, Howard

M. Miller, at the time it was executed.

9. Mccowen died on September 4, 1989.

10. Th·~ Will was probated by Sept.err.bar 6, 1989.

1 11. Mccowen had testamentary capacity on the date of I

01I execution of the Will. i

I 11 12. Mccowen had testamentary capacity on the dates the I I I , changes were made to the Will. 1

13. The Will was found at Mccowen' s residence among his ~

personal effects at or near the time of his death.

14. John Newton qualified as Executor on September 6, 1989, and served in that capacity until removed and replaced by Anita o. Poston.

The foregoing stipulations are agreed upon except:

a. Item number 5 is not stipulated by John Newton, James W. ii Strange, Sam Taylor, Nora Wootton, Steve Webb and the Salvation lJ.,w 0PPtCES I . \ ~t\. ~ VA:< oeve:

~oo \\"oaLo Tun£ C £~T£ • b. Item number 7 is not stipulated by John Newton,

Soaro 1..1. \ ·1aot!nA 23 ~10 c. Item Number 12 is not stipulated by John Newton. (80_. I _._.8·8800 Enter:

'I I 10 2

1\ I I

I' .I :1

·I1: I , Seen and agreed: I 1 onb~~~~~ ii Charles Mccowen I

Diane Goriczynski and s at law

of James W. Strange, Sam Taylor Nora Wootton, Steve Webb and ti Salvation Army !I I

1 ; On behalf of Henry Driver i i~ · ~ , On beai:f OfAlneriCan Cancer ·: Society, American Heart 1 Assoc iatior: ij

1 ·1cl!! s ! I . BLACK. ' < ~T l:< I ".l E C e:tTE• I a.< 2 a ~ 10 1, 11 800 ,1 ii I

I I 11 I' !I 11ii ,.., ,.....,~ i:-· . -

•• I CC\11PLETED ~Ill GEHERAL ADVICE R£GAROIHG YOUR : -- / ; 1--· OCT 251993 A. SAFE KEEP ING. Do not keep the Iii 11 which you s Igned with youU .. it in a safe place wh~re it will not.be lost or damaged. One sugges would be to keep it w1th your other important papers, such as your deeds certificates of title,maTTiage and birth certificates and insur~nce policies. Do not keep your Will in a safety deposit box at the bank. Following you~ death, ~egal difficulties may attend the opening of the box and the 1nventory1n9 or removal of objects therefrom. B. CHANGES IN THE TEXT OF_TllE WILL: .Do not make ANY changes, corrections, interlineations, cancel lat1ons, add1t1ons, substitutions or notations on the original Will. These could well invalidate the entire Will. Instead consult an attorney for his assistance in making these changes. ' c. REVOCATION OF THE \./Ill. Revocation of the \.fill can occur in two ways: (1) by your action in destroying. the Will or.making a new Will; (2) by operation of law upon the happen1ng of certa1n events. (1) Your Actions: The of the various states vary widely as to what type of physical destruction is effective and they have varyina· interpretations as to the effect of ~evoking a Will when you have had - previous Wills (such as does re~ocat1on o'. a subsequent ~ill revoke a fonner Will, etc.) Therefore, 1f you decide to revoke your Will or any part of it, first consult an a.ttorney for assistance. . (2) Operation of Law: A.Will can be revoked automatically by the law when certain events occur. Hh1ch events affect a Will varies from state to state. In general, you should consult an attorney whenever you marry, are divorced, obtain real property (e.g., land, House) outside your home state, or give away or sell property you have specifically mentioned in your Will (this includes even the situations when you have transferred the property to the person who would have taken the property under the Will or when you have reacquired the property previously disposed of). An attorney should also be consulted when, subsequent to the execution of your Wi 11, the birth of a chi 1 d or the death of a beneficiary occurs, hnr"" C" '"'"";""""O_,..;t:',. h2\'" ' ',_"""'...C1 ,, •"~n ... ~-""'•.:do-' -t-- .:,. .a.L....._ .... -;}~- .... t::1 1 ~~$ t ••- -'~ .J•i\.• •• ::J. - 11 "" .... ~ •i'- - '- • '-'wWJ J1;;""-' 1 f"''"''' "'-°"" '"""' IH S.1IC. \fVl\Jltl!:f of the Will. o. SEPARATION FROM THE SERVICE. After retirement, d·ischarge, relief from active duty or other separation from the service, competent leaal counsel should be consulted to review your Will, particularly in view of post-retirement employment and an altered financial situation.

E. REVIEW OF YOU R WILL, HISURAtlCE POLICIES, AND OiHER LEGAL OOCUMEllTS: As can be seen from the above paragraphs, many events can affect your Will. Therefore, you should review your Will periodically with regard to such events. Also, your intentions may change. G~ardians or executors may have grown too old to properly act, beneficiaries may have fallen from favor, or you may wish to name a~ditional beneficiaries. F.inally, as noted above, the laws of the var1ous states with regard to Wills vary widely. Therefore, whenever you change your domicile (legal residence ) you sho uld review your Will with the assistance of an attorney. You should also review your ins urance P?licies and change beneficiaries .·. '"'hen need~d,·due · "t~··rema'ft ngf " b1"·' · ~1~ml'"'• Ml1"'~J:ran~ .~-i<'tM'ftN ..;;;r..,_,.,, bas ~ The Legal . Clinic of Stuart R. Gordonhas discussed with me rny right to change beneficiaries of my insurance policies, H in fact I have J not done so. as related to a prior marriage, or any other change. 1 . ~.tP~~s.e~ ,.. . . ··. . ·.. , . I Io - 121- l 1 k!J, ~I<., Ju.ge~ ~ oATE · • SIGHATURE >. :;. : : ·· .. :· . · .

. . .· '· . . " ...

. ' ( . • t ,, \ .\ .. ·. '.· ·~. .' : . ·~ ·. \ ·.;s-K-. .. ·~. . ..., 1·.

13

------~ - ... FOURTH .JUDICIAL CIRCUIT OF VIRGINIA

CIRCUIT COURT OF THE C ITY OF NORFOLK

June 1, 1993 100 ST. PAUL1S BOULE:VARO LEO NARO 8 .SACHS .Juoc;e: NORFOLK, VI RG I NIA 23510 (804 ) 441-2 • 6 1

Jeffrey T. Talbert, Esquire Anita o. Poston, Esquire SHUTTLEWORTH, RULOFF, VANDEVENTER, BLACK, GIORDANO & KAHLE, P.C. MEREDITH & MARTIN 4425 Corporation Lane 500 World Trade Center Virginia Beach, VA 23462 Norfolk, VA 23510

Alexander P. Smith, Esquire James F. Booker, Esquire ALEXANDER P. SMITH & ASSOCIATES 215 Monticello Arcade P. o. Box 3368 Norfolk, VA 23510-1727 Norfolk, VA 23514-3368

Jeremiah A. Denton, III, Esquire Michael A. Glasser, Esquire The Viking Building GLASSER AND GLASSER Suite 230 600 Dominion Tower 440 Viking Drive 999 Waterside Drive Virginia .Beach, VA 23452-7308 Norfolk, VA 23510-3300

A. Peter Bodell, Esquire WILLIAMS, MULLEN, CHRISTIAN & DOBBINS P. o. Box 1320 Richmond, VA 23210-1320

Re : John w. Newton, Executor of the Estate of Charles Roach Mccowen v. James w. Stange, et al Chancery No. C90-1356

Dear Counsel:

Enclosed find a copy of my memorandum opinion which sets out my decision in the above-styled case.

. Sachs

LBS/ mlj

encl. 14 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

JOHN W. NEWTON, Executor of the Estate of CHARLES ROACH McCOWEN, Deceased,

Petitioner, v. Chancery No. C90-1356

JAMES W. STRANGE, et al,

Defendants.

MEMORANDUM

This is a suit for aid and guidance by the administrator of

the Will of Charles Roach Mccowen who died on September 4, 1989

because of the markings and writings upon the face of the Will

which was offered to probate and admitted to probate on September

6, 1989 in the Circuit Court of the City of Norfolk.

At the time of his death a Will executed on October 27, 1983

in the offices of Howard Miller, the attorney who prepared it, was

found among his personal effects either at or shortly before his

death.

This suit was brought to adjudicate and settle the effect of

the alterations, additions and revocations upon the face of the

Will.

1 15 Because of alleged impropriety on the part of John Newton, who was the admi nistrator named in the will, Anita o. Poston, Esquire was substituted as Administrator d.b.n., c.t. a. on October 16, 1991

following the issuance of a rule by the court on October a, 1991.

By Order of Publication dated February 3, 1993 all "parties

unknown" were ordered to appear and defend their interests.

Following a hearing before the court because of the

c onflicting positions of the parties as to the facts, the court

asked the parties to sign a stipulation as to what was agreed upon

and what was not agreed upon as to the facts of the case in order

to facilitate the fact finding and decision making process.

By stipulation dated 3/23/ 93 all of the parties to the case

in person or by counsel signed a stipulati on which is filed in the

papers of this court .

All the parties except Mr. Newton agreed that the handwriting

and the marks on the Will were the handwriting and marks made by

the testator, Mccowen.

All the parties except Mr. Newton stipulated that Mccowen had

testamentary capacity on the dates that the changes were made to

the Will.

2 16 All the parties except Messrs. John Newton, James W. Strange,

Sam Taylor, Steve Webb, Henry Driver and Ms. Nora Wooten and the

Salvation Army stipulated that Mccowen had continuous physical possession of the Will from its execution until his death. A color copy of the Will is attached to this memorandum for the ready reference of the parties. The colors are precisely as found on the original of this Will so that all the handwriting and marks which appear in red ink on the original appear as shown on the original and the attached copy (on the original of the memo); all that is done in black ink or dark ink as shown on the original is just as shown on the original on the copy.

All parties agree that there were no marks or handwriting on the Will at the time of its execution except for the signatures and initials of the testator and the witnesses and the notary.

All agree that the Will was found at McCowen's residence among his personal effects "at or near the time of his death".

As noted all except Newton agree that the handwriting and the marks on the Will were put there by the testator, Mccowen.

As can be seen by looking at the attached copy of the Will

which is marked Exhibit A, there appears in the left hand margin

of the Will five specific items of information which commence with

3 17 the word "DELETE" and bearing date "l-20-89". Consistent with the writing in the left hand margin concerning "DELETE" that which is referred to for deletion is shown to be actually deleted by lines drawn through the paragraphs referred to in the margin. Following each item to be deleted the testator has signed his name "Charles

Roach Mccowen" and without exception each marginal statement about

"DELETE" is dated in red ink "l-20-89" and signed in the handwriting of the testator. And beside each note about "DELETE", without exception, the typewritten testamentary clause referred to is scratched through in either red or black ink.

At subparagraph J of Article III, a testamentary bequest to

Henry Driver and Virginia Driver was changed in the text by striking out the words "Twenty Thousand ($20,000.00)" and beside

11 11 it in black ink is written 10,000- •

Likewise subparagraph K setting forth a bequest to Gary (Red)

Chandler the words "Five Thousand ($5 ,000.00}" are deleted and

beside that entry can be seen the entry "$10,000".

In subparagraph L of Article III after the instruction in the

left hand margin which says "DELETE" L(SALVATION ARMY)" and signed

by the testator. The words "SALVATION ARMY" are stricken from

subparagraph L.

The heirs at law argue that because of the number of deletions

4 18 - - • • \ . I" • "I - - 1 i t.. ~ : .:: 1...... j. - -' '4 l - ! 4 0 ,)

and amendments the entire Will fails and the property should pass by intestacy.

Most of the remaining contestants or proponents urge that the

Court apply the doctrine of Dependent Relevant Revocation to determine the decision in this case.

The Court has received in evidence today the deposition of

John W. Newton taken on January 12, 1993 by Anita o. Poston,

Esquire, Ad:ministrator of the Estate since the removal of Mr.

Newton. At page 13 of the transcript of this deposition Mr. Newton

testified, upon being shown a copy of the Will, t_hat the testator

told him "I've made some cross-outs in my Will" "and at that time he showed me this" ••.. "he showed me this and the marks he'd

made on the Will."

Based on the foregoing the Court rejects the refusal of Mr.

Newton to stipulate to item number 7 in the stipulation. The

refusal to enter into that stipulation is without foundation in

fact contrary to the sworn testimony of Newton at the time of his deposition.

Likewise, based on the tenor of the conversation between

Newton and the testator immediately following the marks and

deletions made upon the fact of the Will, there is no suggestion

that the testator, Mccowen, did not have testamentary capacity on

5 19 the dates the changes were made to the Will as set forth in paragraph 12, therefore, the Court rejects that refusal as being made without foundation in fact and accepts as fact the stipulation of all parties as to all of the items except item 5 as of this moment. Item 5 of the stipulation will be dealt with hereafter in this memorandum.

THE LAW

Virginia Code §64 .1-58 .1 prescribes the method by which a

testator can revoke all or part of a properly executed witnessed

will. Among those conditions the Code precisely provides that by

cutting, tearing, burning, obliterating or cancelling the testator

may "destroy(s) a will or codicil or provision thereof, (and) such

will, codicil or provision thereof is thereby void and of no

effect. (Emphasis Added)

The Virginia Supreme Court in the case of Etqen v. corboy,

230 Va. 413, 419 (1985) stated that section 64.1-58 of the Code

"permitted partial revocation of a formally attested will through

cancellation by the testator with intent to partially

revoke" .... (Emphasis supplied).

6 20 However it is just as clear in Virginia that if a testator after the execution of a properly attested witnessed will attempts to insert new language or numbers then those insertions are no part of the properly witnessed will and therefore of no testamentary effect. Triplett•s Ex•r. v. Triplett, 161 Va. 906. (1934).

Where the will was found among the testator's effects after his death with the cancellations thereon where the will was in the exclusive or nonexclusive custody of the testator, there will be a presumption, albeit a rebuttable presumption, that the act of cancellation was performed by the testator with the intent of revoking that which was deleted or cancelled. Franklin v. McLean,

192 Va. 684 (1951).

All of these rules are carefully explained in Lamb's Virginia

Probate Practice Section 33 (a) at page 78 where the author writes:

"A carefully prepared, elaborate and regularly executed witnessed typewritten will is presented for probate. In one of the clauses, making, let us say a pecuniary legacy to Rebecca Rowe, the name of the legatee is deleted with a pen. The probate court is satisfied from the evidence or with the aid of the presumption just mentioned (Franklin v. McLean) that the deletion was made by the testator animo revocandi. The paper, excluding the deleted clause is probated as the will. The deleted clause has been revoked in the statutory manner. The will has been partially revoked; the unrevoked portion remains a good will. Suppose, in the example above the testator has run his pen through the

7 21 name 'Rebecca Rowe' and interlined the name 'Dorothy Doe'. Or suppose he has deleted the amount '$1,000.00' and interlined another amount. The subscribing witnesses are unable to say that these changes were made before the will was executed. It is well settled that under these circumstances the paper as it was originally written should be probated. The changes should be ignored."

CONCLUSION

Upon the facts and the law the court with respect to this will concludes that those portions of the will which have been deleted without substitution have been deleted according to the statute.

However those portions of the will which have been deleted but for which a substitution was made as to name or amount the

initial terms of the will will prevail.

Thus, to deal with this issue specifically under the Last Will

and Testament of Charles Roach Mccowen dated 27 October 1983

executed in the City of Norfolk before Charles Salzberg and Leon

Salzberg as witnesses with an affidavit for self execution

witnessed by the testator himself and Charles Salzberg and Leon

Salzberg as witnesses signed before a Notary Public as provided

for the Code of Virginia the court holds that:

ARTICLE III A has been deleted in accordance with the law of

Virginia therefore the bequest to John W. Newton of the business

known as Mac's cycle Shop together with improvements located at

8 22 1904-1906 Granby Street, Norfolk, Virginia is of no effect.

ARTICLE III B purporting to bequeath a 1971 Beachcraft

Airplane and $10,000.00 to James W. Strange is likewise deleted

according to statute and of no effect.

ARTICLE III C of the will is deleted according to the law of

Virginia and therefore the bequest fails.

ARTICLE III D the originally drafted bequest of $20,000.00 to

Nora Wooten is cancelled and deleted according to the law of

Virginia and the proposed bequest is therefore null and void and

of no effect.

ARTICLE III G the proposed bequest to Sam Taylor in the amount

of $10,000.00 is cancelled according to the law of Virginia and

therefore is void and of no effect.

ARTICLE III I the deletion of the proposed bequest to Steve

Webb and Phyllis Webb of the sum of $10,000.00 is cancelled under

the law of Virginia and therefore that proposed bequest is null

and void and of no effect.

ARTICLE III J the interlineation of the sum of $20,000.00 in

this proposed bequest and the substitution of the numerical amount

of $10,000.00 having been made after the execution of the will and

9 23 not witnessed at the time of the execution of the will, according to the evidence in the case, is of no force and will be, under the doctrine of Dependent Relative Revocation read as though no change had been made.

Accordingly, Article III J will be read as though Henry Driver and Virginia Driver will receive the sum of $20,000.00 as originally written.

ARTICLE III K. The deletion of the written sum of $5,000.00 and the numerical sum of $5, 000. 00 in subparagraph K and the

interlineation of $10,000.00 in lieu thereof is void because it was

done after the will was witnessed and was not witnessed and is

therefore not a part of the will and of no effect.

Accordingly, under the doctrine of Dependant Relative

Revocation Article III K will be read to provide the sum of

$5,000.00 for Gary (Red) Chandler.

ARTICLE III L. The deletion of the Salvation Army from

subparagraph L is in accordance with the law of Virginia therefore

the bequest to the Salvation Army is of no effect and fails.

The Administrator d.b.n, c.t.a, Anita o. Poston will prepare an order in accordance with the holdings expressed in the

Memorandum herewith, circulate the same for endorsement by all

parties and/ or their counsel and preserving the objections of all

10 24 as their interests appear.

Your~ .' ve Leolt Ju

LBS/ mlj

#1NE'olTON.MEM

11 25 ,I I VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK

JOHN W. NEWTON, Executor of the Estate of CHARLES ROACH MCCOWEN, Deceased,

Petitioner,

v. CHANCERY NO. C90-1356 JAMES W. STRANGE, et al.,

Defendants.

DECREE

THIS CAUSE came on the Petition for Aid and Guidance by the .

Administrator of the Will of Charles Roach Mccowen and was

submitted to the Court upon a stipulation of facts by the parties

and the deposition of John W. Newton the initial Executor named in

the Will, and after the submission of written memoranda of law and

oral argument by counsel the Court issued its Memorandum Opinion

which is incorporated herein by this reference. For the reasons

set forth in the Memorandum Opinion and for good cause shown, it is

ADJUDGED, ORDERED and DECREED that the Last Will and Testament

of Charles Roach Mccowen dated October 27, 1983 executed in the

City of Norfolk and offered for probate in this Court is a v alid

and legal Will in accordance with Virginia law. The Court finds l.A.w 0 PP'IC!'!: 9 VA:

~! l!B l! D I TH & !1AJITL'I that portions of the Will which were deleted without the addition

~oo WoaLn Ta.ADE G .r:~TE•

~o aro L&.. V1ao1!'fLA 20 ~1 0 of any substitutions were deleted in accordance with Virginia law.

(8041 446·8800 The portions of the Will which were deleted and for which a

substitution was made as to name or amount shall fail and the

initial terms of the Will shall prevail .

It is further specifically ORDERED that: 26 1. Article III A has been deleted and is of no effect .

2. Article III B has been deleted and is of no effect.

3 • Article III c has been deleted a nd is of no effect.

4. Article III D has been deleted and is of no effect.

5. Article III G has been deleted and is of no effect.

6 . Article III I has been deleted and is of no effect.

7. Article III J is valid as originally written and shall be

read as though Henry Driver and Virginia Driver will receiv € the

sum of $20,000.

8. Article III K is valid as originally written and shall be

read as though Gary (Red) Chandler will receive the sum of $5,000.

9. The bequest to the Salvation Army in Article III L has

been deleted and is of no effect.

The remainder of the Will shall be interpreted and

administere d in accordance with the original terms of the Will.

G) ~ If :' i ,,, . ~ -:J · • ENTER ~a td S. Sachs. J ud~

We Ask For This:

LAw 0PP 1CE5 YAl

~lE REDITH & l1.A.RT L'f

~oo Wo•LD T&ADE CE~TE•

~oarou: . Vt•ot:ttA 2::l:)l0 Je emiah A. Denton, (6041 4 46•6 600 wi!W-~ 'trbWA - ~ Michael A. Glasser, ES:

""'"':'. , 2 ~------..~ : · : . 27 ; ,. . , ·•• • : • ·.. • ~ .. . . I ' . cO ; "~nJ11: c I ,;., .. 11cn1 ,-. 1 ~ :... .. ·' ' · LA.w Orr1cz:t1 VA:fDEV!!l(TEB. BLACK,

~EBEDtTH 8t :1AJlT(l(

~ oo WoaLD Ta.ADI! CE:nE•

:;oarout. V1•01:'<1A 2:1:110

(804) ....8·8800

3 28 A$SIGNHENTS OF EBROR A. The trial court erred in holdinq that markinq• ot the Decedent on his will constituted only a partial, rather than a total, revocation of his will, and holdinq that Decedent'• will, as partially revoked, was admissible to probate, tor the followinq reasons: (1) certain chanq•• to the Decedent's will were not executed and witnessed in ac­ cordance with the Virginia Statute of Wills, violatinq the rule established in Triplett's Executor v. Triplett, 161 Va.

906, 172 S.E. 162 (1934): (2) the markinqs on Decedent'• vi~l render its terms vague and uncertain, violatinq the standards

of definiteness applicable under Virginia law1 (.3) Decedent revoked all of Article III, the dispositiva lanquaqe of his will; (4) qiven the extent of the Decedent's markings, ha is required to execute a new will in compliance with the formalities of the Virginia statute of Wills. a. The trial court erred in applying the doctrine of dependent relative revocation, because the elements for ap­ plication of that doctrine, as articulated in Bell y. Timmins, 190 Va. 648, 58 S.E.2d 55 (1950), are clearly not satisfied.

29